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Legislative Update July 2012

Surface Transportation Bill Signed into Law

On Friday, June 29, Congress passed the Moving Ahead for Progress in the 21st Century (MAP-21) bill to extend federal surface transportation funding through September 2014. H.R. 4348, which was signed into law by President Obama on July 6, allocates more than $100 billion in infrastructure investment across the country and is the first highway bill to be passed since 2005. The package cleared the House on a 373-52 vote and the Senate on a 74-19 vote. In general, during the conference deliberations, the Senate gave up environmentally friendly provisions while the House gave up its Keystone XL pipeline and coal ash provisions

On June 28, the representatives offering them withdrew two anti-train amendments. The amendment offered by Rep. Pete Sessions (R-TX) that would directly shut down Amtrak’s long-distance trains, thereby ending passenger train service in 27 of the lower 48 states was withdrawn. This measure would have also been a threat to the remaining trains, as certain fixed costs that would not disappear would be shifted to the surviving trains, and the costs of closing routes also would be substantial.

Another amendment intended to prohibit the use of appropriated funds on food and beverage service on Amtrak was also withdrawn. Amtrak’s café car service has been a target of Republican lawmakers’ ire for some time because it operates at a loss that is subsidized by federal funds. However, the service is not intended as a moneymaker, but is provided as a part of the overall service to passengers on the majority of trains that operate on a daily basis. Elimination of the service would translate to a huge loss of ridership. Because it’s hard to increase sales when your clientele is limited to the passengers on the train, even a privately run service would suffer losses which would also have to be subsidized by federal funds. Also, the measure in the Senate version of the bill that was intended to delay the implementation of Positive Train Control was eliminated in the final bill.

Included in the bill is the extension of a Railroad Grade Crossing set aside, which targets funds at improving and upgrading crossings to eliminate collisions between automobiles and trains.

The bill will help maintain jobs on transportation projects, prevents interest rate increases on new loans to millions of college students, and reauthorizes the federal flood insurance program for five years.

Whistleblower Rights Being Challenged by Railroads

 

On August 3, 2007, the Federal Railroad Safety Act (FRSA), 49 U.S.C. §20109, was amended by The Implementing Recommendations of the 9/11 Commission Act (Public Law 110-53) to transfer authority for railroad worker whistleblower protections to OSHA and to include new rights, remedies and procedures. On October 16, 2008, the Rail Safety Improvement Act (Public Law 110-432) again amended FRSA, to specifically prohibit discipline, harassment, or intimidation of employees who report or participate in an investigation of injuries and safety violations, seek prompt medical treatment for on-the-job injuries, or follow their physician’s treatment orders.

That law is now being challenged by the railroads and a major battle has ensued in the U.S. District Court of District Court for the District of Columbia, where Norfolk Southern Railway has sued Labor Secretary Hilda Solis. Norfolk Southern is seeking to overturn a decision by the Administrative Review Board (ARB) of the Occupational Safety and Health Administration (OSHA) affirming an earlier decision by an OSHA Administrative Law Judge (ALJ) that railroad workers may pursue whistleblower claims in addition to labor agreement disciplinary appeals when their rights are violated by a railroad.

The whistleblower rights are contained in Section 20109 of Title 49 of the United States Code. The OSHA ALJ ruled that both avenues are available to railroad workers because subsection (h) of Section 20109 states that “[n]othing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee … under any collective bargaining agreement.”

Norfolk Southern, with the support of the Association of American Railroads is seeking to overturn this decision, claiming that railroad workers who appeal their dismissals are barred from pursuing a whistleblower claim by FRSA subsection (g), which states that an “employee may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier.” The carriers argue that the right to appeal discipline for alleged rules infractions to a Section 3 adjustment board under the Railway Labor Act constitutes “protection under another provision of law,” not from a collective bargaining agreement.

The ruling that was upheld by the Administrative Review Board was issued in a case involving the whistleblower rights of a BLET member, employed as a locomotive engineer, who was wrongfully terminated by the Union Pacific Railroad (UP). The ARB decision came in a consolidated appeal with a Norfolk Southern conductor’s complaint, which opened the door to the Norfolk Southern court challenge.

When the locomotive engineer was discharged in November 2007, the BLET appealed on his behalf under the collective bargaining agreement. When UP refused to put him back to work, the BLET successfully argued to a Section 3 arbitrator that his agreement rights were violated. On March 27, 2008, the BLET member filed a whistleblower complaint with OSHA, charging that he was illegally terminated for reporting an on-the-job injury.

The National Division has requested the court’s permission to intervene in Norfolk Southern’s lawsuit in defense of this member’s whistleblower rights, and join Secretary Solis’s motion to dismiss the case. This is just one of several OSHA decisions that have gone against Norfolk Southern. On June 18, OSHA announced that Norfolk Southern has been fined over $800,000 for unlawfully firing workers who reported on-the-job injuries, including $525,000 for punitive damages and attorneys’ fees.

Norfolk Southern is not the only railroad that has caught OSHA’s attention. In early June of this year, the Assistant Secretary for Occupational Safety and Health slammed attorneys for Burlington Northern Santa Fe Railway (BNSF) for asking OSHA to disclose the names of non-management employee witnesses the agency intended to interview in several other ongoing whistleblower investigations.

BNSF officials had taken the position that it should be able to “offer its representation” to these non-management witnesses. BNSF also asserted that it had a right to be present during any OSHA interview of a non-management witness. In a letter to BNSF’s General Counsel, OSHA’s Assistant Secretary David Michaels rejected the BNSF requests as “wholly inappropriate,” stating that, “OSHA assumes that BNSF counsel would be well aware of the conflict of interest that would inevitably arise if BNSF’s attorney were to represent both the corporation and non-managerial employees in a whistleblower case … OSHA takes allegations of such retaliation extremely seriously and will not tolerate retaliation against witnesses who cooperate in FRSA whistleblower investigations.”

In response to the growing need for education and information to increase awareness and use of whistleblower protections throughout the organization, the BLET National Division is providing all General Chairmen, State Legislative Board Chairmen, Local Chairmen, and Legislative Representatives this information concerning the industry’s attempt to thwart whistleblower investigations and enforcement of worker protections.

Copies of OSHA’s press release concerning the Norfolk Southern fines, OSHA’s letter to BNSF’s Legal Department, National President Pierce’s response to the OSHA letter, and his letter to BLET officers concerning this issue can be viewed, printed, and/or downloaded from this link:

www.ble-t.org/pdf/Whistleblower_Circular.pdf.

High-Speed Rail in California

On July 6, the California State Senate voted to pass legislation that will enable high-speed rail construction to begin. The new rail system would be the largest public

works project in the state and could potentially employ hundreds of unionized maintenance of way workers and locomotive engineers and trainmen who are members of the Teamsters Rail Conference.

California Governor Jerry Brown and his administration have been pushing for the passage of this high-speed rail project ever since he took office in January 2011, and

The Obama Administration is strongly in favor of high-speed rail projects.

BLET National President Dennis Pierce commented that California will serve as a model for other states and cities to make similar decisions and that BLET members look forward to operating the equipment on this state-of-the-art rail line.

New benefit year for Railroad Unemployment and Sickness Benefits

A new benefit year under the Railroad Unemployment Insurance Act began July 1, 2012. Administered by the Railroad Retirement Board (RRB), this Act provides two kinds of benefits for qualified railroaders: unemployment benefits for those who become unemployed but are ready, willing and able to work; and sickness benefits for those who are unable to work because of sickness or injury. Sickness benefits are also payable to female rail workers for periods of time when they are unable to work because of pregnancy and childbirth. For a listing of questions and answers that describe these benefits, their eligibility requirements, and how to claim them can be found at: http://www.rrb.gov/opa/qa/pub_1206.asp.

Railroader Sleep Study

The results of a study regarding railroad worker fatigue management, sleep, and sleep disorders have been made publicly available. The website, entitled “Railroaders’ Guide to Healthy Sleep,” www.railroadersleep.org, is the result of a collaborative project that was started in 2010 between BLET, Harvard Medical School, the WGBH Educational Foundation, and the UTU. The final product reflects anonymous survey results from a number of BLET and UTU members.

The website, sponsored by the Federal Railroad Administration, give members information on how to obtain better sleep and also contains videos and other tools to help railroaders stay safe on the job, including instructions on how to listen to one’s body clock and how to recognize sleep apnea. It also has an interactive feature that allows one to check his/her reaction time.

Register to Vote!

If you are not yet registered to vote, you can get the forms needed to register in your state quickly and easily by going to http://www.teamster.org/content/register-vote-2. Please make sure that you and your eligible family members are registered to vote in the upcoming national election as soon as possible. So much hangs on this election that will affect your livelihood. How our representatives vote on issues at the state or national level determines so much about our lives, and we are the ones who put them in office! If you can vote early in your state, then take advantage of that option, especially if you are on a train crew. You never know if you’ll be in town or not on Election Day.

I know I sound like a broken record on this one, but please check into the voting record or the views of the representatives you intend to vote for. Another source for checking into this information is a website entitled On the Issues: Every Political Leader on Every Issuehttp://www.ontheissues.org/Check it out!

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